Middelberg v Takseermeester en Andere (TPD) (unreported case no 26645/97, 12-3-1998) (Spoelstra, J)

There has for a long time been a debate, and on occasion a heated one, concerning who may appear before a Taxing Master to present or oppose bills of costs.

In some courts the Taxing Masters have made a ruling at the commencement of a taxation that only a person with right of appearance in terms of s 4(2) of the Right of Appearance in Courts Act 62 of 1995 or in terms of s 25(3) of the Legal Practice Act 28 of 2014 (LPA) may appear.

Ancillary to this is whether evidence may be led at taxation.

What is the answer and why?

In terms of s 25(3) of the LPA, the right of attorneys to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court (ie, Superior Courts) is restricted. Attorneys wishing to appear in these courts must apply to the Registrar of the High Court for a certificate of right of appearance, which will be issued if the attorney –

• has been practising for a continuous period of not less than three years (the period may be reduced if the attorney has undergone a trial advocacy training programme) and is in possession of an LLB degree; (s 25(3)(a)); or
• ‘has gained appropriate relevant experience’ (s 25(3)(b)).

Taxation is a quasi-judicial proceeding and, although not expressly stated in the LPA is contemplated in it.

Section 25(2) of the LPA provides that an attorney (who does not have audience before Superior Courts) has the right to appear in any court or before any board, tribunal or similar institution. A Taxing Master indubitably falls into this latter category.

A candidate attorney is also permitted to appear at taxation right from the first day of practical vocational training.

Section 25(5)(a)(ii) makes provision for this.

‘(5)(a)  A candidate attorney is, … , entitled to appear –

…

(ii)        before any board, tribunal or similar institution on behalf of any person, instead of and on behalf of the person under whose supervision he or she is undergoing his or her practical vocational training’.

The question of what the position concerning a cost consultant, who does not have a legal qualification but who is the drafter of the bill of costs or has prepared the opposition to the bill of costs is?

The answer is to be found in the judgment in Middelberg v Takseermeester en Andere (TPD) (unreported case no 26645/97, 12-3-1998) (Spoelstra, J).

The bill of costs in this matter was presented for taxation by counsel (who automatically have a right of appearance) but was taken on review because the expert witness was a cost consultant whose business was the preparation and opposition of bills of cost.

According to Spoelstra J only one of the grounds is still applicable at this stage, namely that the proceedings were irregular and owing to the fact that a cost consultant that appeared on behalf of the respondents was not qualified as a legal practitioner (paraphrased from the Afrikaans judgment).

Although the taxation proceedings form an integral part of the legal process, the nature thereof differs from the previously mentioned part of the legal process. The goal or objective of taxation is firstly to quantify the costs and secondly, to ensure that the parties responsible for the costs do not pay too much, and that the successful party is not prejudiced (Mouton and Another v Martine 1968 (4) SA 738 (T) on 742) (paraphrased from the Afrikaans judgment). In Botha v Themstocleous 1966 (1) SA 107 (T) Hill, R on page 111 it states:

‘The taxing master is not a judicial officer and is not bound by the strict rules of evidence. He is virtually in the position of an arbitrator or referee appointed to assist the court in determining what a just remuneration should be for an attorney’s services in any particular case’.

There is no specific procedure prescribed for taxation. The Taxing Master determines the course of the proceedings. What occurs in front of the Taxing Master is, in essence, a debate pertaining to a bill of costs. Where necessary, the Taxing Master may hear evidence. There is no reason why the Taxing Master will deny a person, such as a cost consultant, who compiled a bill of costs and who in all likelihood is in a better position to provide the necessary information, the opportunity to deliver a contribution. It may even be essential for the proper execution of his task (paraphrased from the Afrikaans judgment).

Consequently, in the light of the decision, a costs consultant has the right to appear at a taxation on behalf of a party as an expert witness.

Cora van der Merwe BA (UJ) BA (Hons) (cum laude) (UP) is a legal cost consultant at Legally Accurate Cost Consultants in Pretoria.

This article was first published in De Rebus in 2022 (March) DR 28.